Doctrine, Discipline and the “Kasper Proposal”

One of the questions commonly raised in relation to the proposal of Cardinal Walter Kasper that the Catholic Church should admit to sacramental penance and Holy Communion certain civilly divorced and “remarried” individuals—who continue to act as if their second “marriage” were valid—is whether the Church’s traditional prohibition of this proposal is a matter of doctrine or mere discipline. The assumption behind the question is that if the prohibition is a matter of doctrine then change is impossible or at least much less likely than what could be expected if it is merely disciplinary. The latter, everyone recognizes, is possible to change, at least in principle.

A matter may be disciplinary if it falls within the category of positive ecclesiastical law. This is law posited by the Church which can contain content that goes beyond the specific requirements of natural law or supernatural divine law. Hence, the Church may require as a matter of grave obligation that we attend Mass on a particular day of liturgical solemnity, even though divine law contains no specific precept concerning that day. Accordingly, the Church may allow for relaxations of that obligation for just causes—that is, provide for dispensations—or it may even remove the law altogether through abrogation.

On the other hand, it is possible that the contents of some ecclesiastical laws overlap with the contents of natural or divine law. When that happens, the subjects of the ecclesiastical law have more than one reason to be bound. They are bound both because natural or divine law obliges them, and because ecclesiastical authority obliges them.

What is the point of such repetitive laws? Natural law and divine law are generally more secure than ecclesiastical law, so would not positive ecclesiastical law be redundant when its content overlaps with either of the other laws? It might be if everyone clearly understood and followed natural and divine law. Evidently many people do not clearly recognize the natural law prohibition of procured abortion, and in recent years, this may be due in part to the failures of civil legislators and judges whose actions increase confusion in the public mind. Hence, it is altogether appropriate that the Church censures with excommunication those of her subjects who—possessing sufficient imputability—procure abortion as a crime according to canon law. In this case, canon law serves to help people recognize and be deterred from a grave violation of natural law (and supernatural charity).

The example of abortion is useful to illustrate another important point. Even if the Church were to abrogate its laws with respect to the canonical crime of procured abortion, that would have no bearing whatsoever on the intrinsic immorality of that act from a natural law perspective. Moreover, because of that intrinsic immorality, ecclesiastical positive law could never rightly approve of procured or direct abortion.

Concerning the Kasper proposal, many are under the impression that it is simply a matter of changeable ecclesiastical law—that the Church may rightly approve of admitting to sacramental penance and Holy Communion those who publically and continually live as husband and wife when at least one of them is (at least presumed to be) married to another. This impression, however, is itself an oversimplification.

Perhaps the most pertinent ecclesiastical law relevant to the Kasper proposal is canon 915 of the Code of Canon Law: “Those upon whom the penalty of excommunication or interdict has been imposed or declared, and others who obstinately persist in manifest grave sin, are not to be admitted to Holy Communion.” Of course, as Pope Francis has taught (General Audience of August 5, 2015), the civilly divorced and “remarried” are by no means excommunicated on account of their state; and there was no reason to be in doubt about this even prior to the Holy Father’s teaching. Nevertheless, being active in that state traditionally has been understood to include the parties with those “who obstinately persist in manifest grave sin.” So in order for the Kasper proposal rightly to meet with approval in ecclesiastical law, either canon 915 has to change, or those who are active in the civilly divorced and “remarried” state must cease to be included with those who obstinately persist in manifest grave sin. Let us consider these options in turn.

The suggestion that the content of canon 915 is subject to change is faced with a serious difficulty. According to the June 24, 2000, Declaration of the Pontifical Council for the Interpretation of Legislative Texts, Concerning the Admission to Holy Communion of Faithful Who Are Divorced and Remarried, “The prohibition found in the cited canon, by its nature, is derived from divine law and transcends the domain of positive ecclesiastical laws: the latter cannot introduce legislative changes which would oppose the doctrine of the Church.” In its context, this statement clearly and especially refers to the prohibition as applied to “others who obstinately persist in manifest grave sin.” Hence, the official understanding of canon 915 is that its prohibition is so connected with higher (divine) law that its content is not merely a matter of mutable ecclesiastical discipline.

A similar point is made by the Congregation for the Doctrine of the Faith’s 1994 Letter to the Bishops of the Catholic Church concerning the Reception of Holy Communion by the Divorced and Remarried Members of the Faithful. Referring to Pope Saint John Paul II’s 1981 Apostolic Exhortation Familiaris Consortio, the Congregation stated: “The Exhortation … confirms and indicates the reasons for the constant and universal practice, ‘founded on Sacred Scripture, of not admitting the divorced and remarried to Holy Communion.’ The structure of the Exhortation and the tenor of its words give clearly to understand that this practice, which is presented as binding, cannot be modified because of different situations.” Although not explicitly referring to divine “law,” the Letter and the Exhortation clearly refer to the foundation of the Church’s “constant and universal practice,” in this case as “founded on Sacred Scripture,” which is the primary source for divine law in its written form. In any case, being founded upon (or “supported by,” as the Latin text’s innixam can also be rendered) Sacred Scripture indicates a connection between the specific practice and divine revelation which is at least consistent with the point of the Declaration above, that the matter is not simply in the realm of mutable discipline.

Is it possible that those who are active in the civilly divorced and “remarried” state may cease to be included with those who obstinately persist in manifest grave sin? In order to address this question, it is necessary to make clear the meanings of the terms used in canon 915. Thankfully, the Declaration provides authoritative explanations. “Grave sin” is to be “understood objectively, being that the minister of Communion would not be able to judge from subjective imputability.” “Obstinate persistence … means the existence of an objective situation of sin that endures in time and which the will of the individual member of the faithful does not bring to an end, no other requirements (attitude of defiance, prior warning, etc.) being necessary to establish the fundamental gravity of the situation in the Church.” Finally, the Declaration illustrates the “manifest” character of the objectively grave sin by contrasting it with a situation that is per se “occult,” that is hidden.

The Declaration takes it for granted that the civilly divorced and “remarried” are not in a situation of obstinate persistence in hidden grave sin. Rather, their objective sin is “per se manifest,” that is, in itself evident. Why is that the case? Because the married state, especially with civil recognition, is not a mere private matter. The Letter from the Congregation for the Doctrine of the Faith notes: “the consent that is the foundation of marriage is not simply a private decision since it creates a specifically ecclesial and social situation for the spouses, both individually and as a couple.” As a familial and social unit, the married couple is in a different relation to society and the common good than the single person. Accordingly, other members of society are obligated to treat that couple in ways that respect the spouse’s marital rights and duties. This cannot be done unless there is a public character to the married state.

Hence, by setting themselves up in the married state, the man and woman enter into a situation where their relationship is, in principle, manifest—or not hidden from the public. Consequently, when persons in the married state separate and “marry” others, they must be viewed in principle as manifestly living unfaithfully in relation to the original, and (presumptively) true, marriage. As living in this way will always be “grave sin, understood objectively,” there appears to be no way that the persons who actively persist in this way of life may cease to be included under the principle of canon 915.

Of course, it is always possible for a man and a woman to cease to be included under the principle of canon 915 if they cease active persistence in manifestly unfaithful living. Nothing but their wills prevents this change. Even if on account of a serious reason—for example, for the upbringing of their children—it is not possible for a particular “remarried” couple to satisfy the ordinary obligation to separate, the graces of repentance and chaste living are still always available for those who ask the Lord with a sincere heart. Thus after receiving the sacrament of Penance, there is no obstacle to the couple’s admission to Holy Communion, provided they account for the public character of their condition. The Declaration provides clearly for this last consideration: “Given the fact that these faithful are not living more uxorio [as husband and wife] is per se occult, while their condition as persons who are divorced and remarried is per se manifest, they will be able to receive Eucharistic Communion only remoto scandalo [scandal being removed].”

There is one other avenue that a supporter of the Kasper proposal might suggest, namely that the relevant contents of the Pontifical Council’s Declaration, the Congregation’s Letter, and Pope Saint John Paul II’s Apostolic Exhortation are themselves either wrong, or at least subject to change. But this suggestion introduces its own serious difficulties. If the official documents of the Church have repeatedly and forcefully taught both that those actively living in the “married” state after mere civil divorce are not be admitted to Holy Communion, and that the principles requiring this teaching are so connected to divine law as to make them immutable, then on what basis would those possessing the teaching office of the Church ever be able to form a right judgment contrary to that teaching? The difficulty of finding such a basis is compounded by the fact that even within the last couple of years of reignited controversy, there has been no substantially new argument or principle in favor of the Kasper proposal that had not already been considered and found decidedly unpersuasive by the Holy See within the prior four decades (see also “Concerning some objections to the Church’s teaching on the reception of Holy Communion by divorced and remarried members of the faithful,” by Joseph Cardinal Ratzinger, supplementing the Congregation’s 1994 Letter).

Indeed, all things considered, it is no surprise that countless members of the faithful already find it superlatively confusing that after exhaustive studies and repeated declarations from the Holy See over decades the content of the Kasper proposal is being presented anew, as if it should no longer be viewed as a settled matter.

Especially considering his recent writings, it is evident that one of Cardinal Kasper’s own chief concerns and motivations is his sense of pastoral mercy. In light of this, it should be helpful to recall that the most focused studies and declarations of the Holy See on the non-admittance to Holy Communion of the civilly divorced and “remarried” were accomplished and produced during the pontificate of John Paul II, who, in addition to having a most brilliant intellect, had the pastoral and merciful heart of a literal saint. Surely his own saintly appreciation of pastoral mercy informed his teaching on that matter at least as much as any other consideration. The Holy Father showed us that it is neither loving nor merciful to civilly divorced and “remarried” persons to act, or fail to act, in such a way that their complete conversion might be hindered or discouraged. For in the doctrine he taught and in the discipline he promulgated, the saint kept in mind “the salvation of souls, which in the Church must always be the supreme law” (canon 1752).

(Photo credit: CNS / Reuters / Tony Gentile)

Joseph Arias

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Joseph Arias is Assistant Professor of Theology and Dean of Students at the Graduate School of Christendom College in Alexandria, VA, where he serves as faculty advisor for students concentrating in moral theology. He is also an adjunct professor for the Department of Theology at Christendom College in Front Royal, VA.

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